Last month, the Massachusetts Supreme Judicial Court raised the stakes for all big law firms with patent-prosecution practices by requesting amicus curiae briefing on whether representing competitors “on similar inventions” gives rise to a conflict under Massachusetts law.
A broad reading of the conflict rules not only could pose headaches for big law firms, it could make obtaining patents more difficult, expensive and time consuming, especially for smaller companies, said Erik Belt, president-elect of the Boston Patent Law Association, which intends to submit a brief.
Patent prosecution is a highly specialized practice, and both firms and prosecutors typically develop specialties within particular industries. “You may want a patent attorney who’s worked in your industry, who’s familiar with the examiners, who knows what the prior art is, knows what other art is out there,” said Belt, who cochairs the association’s amicus committee. Taken to an extreme, a broad reading of the conflict rule could prevent specialized prosecutors from having more than a single client, he warns.